Executive Summary: Key Legal and Evidentiary Issues

• Central dispute involved whether the Environmental Appeal Board acted adjudicatively or inquisitorially.

• Allegations of a reasonable apprehension of bias were raised against the Board’s panel members.

• Extensive questioning of witnesses by the Board gave the appearance of siding with GFL Environmental Inc.

• Procedural fairness issues arose from rulings, comments, and conduct during the appeal hearing.

• The chambers court quashed the Board’s decision and ordered costs against it.

• The Court of Appeal dismissed the Board’s appeal, upholding the costs award.

Facts and outcome of the case

Background of the permit dispute
GFL Environmental Inc. operates a large turf and composting facility on farmland in Delta, British Columbia. In 2017, GFL applied for an environmental permit from the District Director of Metro Vancouver under the Environmental Management Act and the regional air quality bylaw. The permit was granted in 2018 with strict requirements, including a compliance standard based on odour units. Residents of Delta appealed the permit terms, arguing they were too lenient, while GFL also appealed, claiming the conditions were too stringent.

Proceedings before the Environmental Appeal Board
The appeals were consolidated into a lengthy hearing before the Environmental Appeal Board. The Board ultimately allowed the appeals in part, revising the permit by removing the odour unit requirement and extending the permit term. During the hearing, the District Director alleged that the conduct of the Chair and one member gave rise to a reasonable apprehension of bias. The Board dismissed that allegation and continued with the proceedings.

Judicial review in the Supreme Court
The District Director petitioned for judicial review, limited to the issue of bias. The Supreme Court of British Columbia found that the Board’s conduct created a reasonable apprehension of bias, citing aggressive cross-examination of the District Director’s witnesses, sarcastic comments, and procedural rulings that aligned with GFL’s interests. The decision of the Board was quashed, and unusually, costs were awarded against the Board on the basis of misconduct and procedural unfairness.

Appeal to the Court of Appeal
The Environmental Appeal Board appealed both the bias finding and the costs order. The Court of Appeal concluded that the Board’s role was adjudicative and that it must be held to the same standards of impartiality as a court. The court agreed that the Board’s conduct created a reasonable apprehension of bias and upheld the chambers decision.

Final outcome
The appeal was dismissed. The Environmental Appeal Board remained liable for costs, while no damages were awarded. The District Director of Metro Vancouver prevailed, and the case reinforced that administrative tribunals exercising adjudicative functions must maintain strict impartiality.